FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 25, 2005

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 05-11628 

 

 D. C. Docket No. CV-05-00530

THERESA MARIE SCHINDLER SCHIAVO, 

incapacitated ex rel, Robert Schindler and 

Mary Schindler, her parents and next friends,

Plaintiffs-Appellants,

versus

MICHAEL SCHIAVO, 

as guardian of the person of 

Theresa Marie Schindler Schiavo, incapacitated,

JUDGE GEORGE W. GREER, 

THE HOSPICE OF THE FLORIDA SUNCOAST, INC., 

Defendants-Appellees.

--------------------------

 Appeal from the United States District Court for the

Middle District of Florida

--------------------------

(March 25, 2005)

Before CARNES, HULL, and WILSON, Circuit Judges.
2

PER CURIAM:

Our previous decision in this case affirmed the district court’s March 22,

2005 denial of the plaintiffs’ motion for a temporary restraining order as to the 

claims raised in the five counts of the initial complaint filed in this case. Schiavo

ex rel. Schindler v. Schiavo ex rel. Schiavo, ___ F.3d ___, 2005 WL 648897 (11th

Cir. Mar. 23, 2005) (Schiavo I), stay denied, ___ S. Ct. ___, 2005 WL 672685

(Mar. 24, 2005). After that appeal was taken, the plaintiffs filed an amended

complaint on March 22, 2005, adding four more counts, and a second amended

complaint on March 24, 2005, adding a fifth count. 

On the basis of the claims contained in those new counts, plaintiffs also filed

a second motion for a temporary restraining order. Like their first motion for a

temporary restraining order, this one sought an injunction to require the defendants

to transport Theresa Marie Schindler Schiavo to a hospital for restoration of

nutrition and hydration and for medical treatment. On the evening of March 24,

2005, the district court held a hearing on the motion and, after working through the

night, issued an order earlier today denying the motion. A copy of that order is

attached as an Appendix to this opinion. We now have before us the plaintiffs’

appeal from the order denying that second motion for a temporary restraining

order.
3

Our prior decision in this case brings into play the law of the case doctrine

insofar as issues we addressed in our March 23, 2005 opinion are concerned. 

“Under the law-of-the-case doctrine, [the resolution of] an issue decided at one

stage of a case is binding at later stages of the same case.” Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1313 (11th Cir. 2000). The doctrine operates to

preclude courts from revisiting issues that were decided explicitly or by necessary

implication in a prior appeal. Luckey v. Miller, 929 F.2d 618, 621 (11th Cir.

1991); see also Burger King Corp. v. Pilgrim’s Pride Corp., 15 F.3d 166, 169 (11th

Cir. 1994) (“[T]he law of the case encompasses all things decided by necessary

implication as well as those decided explicitly.” (internal marks and citations

omitted)).

Law of the case binds not only the trial court but this court as well. See, e.g.,

Burger King Corp., 15 F.3d at 169 (“As we have repeatedly recognized, findings of

fact and conclusions of law by an appellate court are generally binding in all

subsequent proceedings in the same case in the trial or on a later appeal.” (internal

marks and citations omitted)); Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506,

1510 (11th Cir. 1987) (en banc) (“The doctrine is based on the premise that an

appellate decision is binding in all subsequent proceedings in the same case . . . .”);

Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (per
4

curiam) (“Under the law of the case doctrine, both the district court and the court

of appeals generally are bound by findings of fact and conclusions of law made by

the court of appeals in a prior appeal of the same case . . . .” (internal marks and

citations omitted)); Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984) (“The

doctrine generally operates to preclude a reexamination of issues decided upon

appeal, either by the district court on remand or by the appellate court itself upon a

subsequent appeal.” (internal marks and citations omitted)). As this Court sitting

en banc has explained, “Failure to honor [the] commands [of the law of the case

doctrine] can only result in chaos.” Litman, 825 F.2d at 1511.

There are a few discrete exceptions to the law of the case doctrine. It “does

not limit the court’s power to revisit previously decided issues when (1) new and

substantially different evidence emerges at a subsequent trial; (2) controlling

authority has been rendered that is contrary to the previous decision; or (3) the

earlier ruling was clearly erroneous and would work a manifest injustice if

implemented.” Klay v. All Defendants, 389 F.3d 1191, 1197–98 (11th Cir. 2004)

(internal marks and citation omitted); see also Wheeler, 746 F.2d at 1440. None of

those exceptions apply here.

Because our previous decision was published, the prior panel precedent rule

also applies to any holdings reached in the earlier appeal. “Under the
5

well-established prior panel precedent rule of this Circuit, the holding of the first

panel to address an issue is the law of this Circuit, thereby binding all subsequent

panels unless and until the first panel’s holding is overruled by the Court sitting en

banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8

(11th Cir. 2001); see also United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.

1993); Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997). 

When read against the law of the case doctrine and the prior panel precedent

rule, our March 23, 2005 decision establishes the following propositions that we

take as given in this appeal: Pub. L. No. 109-3 does not supplant the law

applicable to temporary restraining orders or preliminary injunctions, Schiavo I,

2005 WL 648897, at *2; we have appellate jurisdiction over the denial of a

temporary restraining order in these circumstances and treat it as the denial of a

preliminary injunction or a final judgment, id. at *1; because the other three

preliminary injunctive relief factors are present, the merits-related factor is whether

the plaintiffs have shown “a substantial case on the merits,” id. at *1–2; our review

of the district court’s denial of preliminary relief is only for abuse of discretion, id.

at *2; the district court did not abuse its discretion in denying preliminary relief on

the claims raised in the first five counts of the complaint, id.; and injunctive relief

under the All Writs Act, 28 U.S.C. § 1651(a), is not appropriate here because it is a
 Section 12131(1) defines “public entity” as: 1

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or

States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority (as defined

in section 24102(4) of Title 49).

42 U.S.C. § 12131(1).

Section 12181(7) provides that:

The following private entities are considered public accommodations for purposes of this

subchapter, if the operations of such entities affect commerce— 

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within

a building that contains not more than five rooms for rent or hire and that is actually

occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or

entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales

or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair

service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance

office, professional office of a health care provider, hospital, or other service establishment;

6

situation that falls within the scope of Fed.R.Civ.P. 65 governing temporary

restraining orders and preliminary injunctions, Schiavo I, 2005 WL 648897, at

*4–5.

We turn now to the claims that were not decided in our prior opinion. 

Count Six of the amended complaint claims that the defendants’ actions violate the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. We agree with

the district court that Defendant Michael Schiavo, as court appointed guardian for

Theresa Schiavo, is neither a public entity, pursuant to 42 U.S.C. § 12131(1), nor a

public accommodation, pursuant to 42 U.S.C. 12181(7). Our prior decision in this 1
(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other

place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency,

or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or

recreation.

42 U.S.C. § 12181(7).

 Nonetheless, we take this opportunity to expound on the reasoning behind our first 2

decision’s conclusion that the three defendants against whom injunctive relief is sought are not state

actors. 

Plaintiffs’ argument that Michael Schiavo is a state actor is that he is one because he used

the state courts to deprive his wife of her rights. To the contrary, “one who has obtained a state

court order or judgment is not engaged in state action merely because [he] used the state court legal

process.” Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985);see also Harvey v. Harvey,

949 F.2d 1127 (11th Cir. 1992) (no state action where husband used courts to have his wife

committed to a state mental hospital, because “[u]se of courts by private parties does not constitute

an act under color of state law”); Dahl v. Akin, 630 F.2d 277, 281 (5th Cir. 1980). 

Plaintiffs argue that Judge Greer is a state actor simply because he is a state judge. That does

not follow. See Paisey v. Vitale, 807 F.2d 889, 893–94 (11th Cir. 1986) (“Obviously the mere fact

that Judge Vitale is named as a defendant does not create the requisite state involvement,” because

“[p]roviding a neutral forum for adjudication is an essentially neutral act.”). 

7

case establishes, as the district court concluded, that Michael Schiavo is not acting

under color of state law in these circumstances either. Schiavo I, 2005 WL

648897, at *2 (“For the reasons explained in the district court’s opinion, we agree

that the plaintiffs have failed to demonstrate a substantial case on the merits of any

of their claims.”); see also Schiavo ex rel. Schindler v. Schiavo, ___ F. Supp. 2d

___, 2005 WL 648897, App. at *13 (M.D. Fla. Mar. 22, 2005) (finding that the

defendants were not acting under color of state law). Under the law of the case

doctrine and the prior panel precedent rule, that settles the state action issue.2
Finally, plaintiffs contend that the Hospice is a state actor because it receives Medicare and

Medicaid money. The Supreme Court has repeatedly held, however, that federal money does not

transform private persons or entities into state actors. See, e.g., S.F. Arts & Athletics, Inc. v. U.S.

Olympic Comm., 483 U.S. 522, 544, 107 S. Ct. 2971, 2985 (1987); Blum v. Yaretsky, 457 U.S. 991,

1011, 102 S. Ct. 2777, 2789 (1982); Rendell-Baker v. Kohn, 477 U.S. 830, 840, 102 S. Ct. 2764,

2770 (1982).

8

The district court is also correct that Defendant Hospice of Florida Suncoast,

Inc. is not a “public entity” within the meaning of the ADA. See 42 U.S.C. §§

12131(1)(A)–(C). Assuming it is a place of “public accommodation,” the plaintiffs

still have not made a substantial showing on this claim. The Hospice did not

remove nutrition and hydration and withhold medication from Theresa Schiavo

“on the basis of [her] disability.” Instead, the Hospice took these actions pursuant

to a valid court order. The ADA was never intended to provide an avenue for

challenging court orders in termination of care cases. See Bryant v. Madigan, 84

F.3d 246, 249 (7th Cir. 1996) (concluding that the ADA “would not be violated by

a prison’s simply failing to attend to the medical needs of its disabled prisoners”

and that the statute “does not create a remedy for medical malpractice”); see also

Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir. 2000) (“Cases decided under the

Rehabilitation Act are precedent for cases under the ADA, and vice-versa.”). 

Count Seven asserts a claim against the Defendant Hospice under § 504 of

the Rehabilitation Act of 1973, as amended, 29 U.S. § 794. As the district court

explained, Theresa Schiavo is not “otherwise qualified” within the meaning of this
9

Act “because she would not have had any need for a feeding tube to deliver

nutrition and hydration but for her medical condition.” Schiavo ex rel. Schindler v.

Schiavo, ___ F. Supp. 2d ___, 2005 WL 677224, at *3 (M.D. Fla. Mar. 25, 2005);

see Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 121 (7th Cir.

1997) (“Grzan is not ‘otherwise qualified’ because, absent her handicap, she would

not have been eligible for treatment in the first place.”). The Rehabilitation Act,

like the ADA, was never intended to apply to decisions involving the termination

of life support or medical treatment. See United States v. Univ. Hosp., State Univ.

of N.Y., 729 F.2d 144, 156 (2d Cir. 1984) (“If [C]ongress intended section 504 to

apply in this manner, it chose strange language indeed.”); id. at 157 (“The

legislative history, moreover, indicates that [C]ongress never contemplated that

section 504 would apply to treatment decisions of this nature.”); Johnson v.

Thompson, 971 F.2d 1487, 1493–94 (10th Cir. 1992) (agreeing with University

Hospital and stating that “[o]rdinarily, however, if a person were not so

handicapped, he or she would not need the medical treatment and thus would not

‘otherwise qualify’ for the treatment”).

Count Eight is a procedural due process claim asserting that under Cruzan v.

Mo. Dep’t of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), the Due Process

Clause requires that decisions to remove hydration and nutrition from an
10

incapacitated person must be supported by clear and convincing evidence that she

would have made the same decision, and that there was not enough evidence in this

case to meet that standard. The plaintiffs assured the district court that this was a

procedural due process claim. Schiavo ex rel. Schindler v. Schiavo, ___ F. Supp.

2d ___, 2005 WL 677224, at *4 (M.D. Fla. Mar. 25, 2005) (district court order

denying plaintiffs’ second motion for a temporary restraining order); Tr. pt. I at 16,

pt. II at 15 (Mar. 24, 2005 oral arg. before the district court). The plaintiffs have no

substantial case on the merits as to this claim for at least two independently

adequate reasons. 

First, Cruzan did not establish that the Constitution requires application of a

clear and convincing evidence standard before termination of care. The Supreme

Court held in Cruzan only that a state could, if it wished, require that evidence of

the incompetent’s wishes be proven by clear and convincing evidence. Id. at 280,

110 S. Ct. at 2852 (“The question, then, is whether the United States Constitution

forbids the establishment of this procedural requirement by the State. We hold that

it does not.”); id. at 284 (“In sum, we conclude that a State may apply a clear and

convincing evidence standard in proceedings where a guardian seeks to discontinue

nutrition and hydration of a person diagnosed to be in a persistent vegetative

state.”). 
11

Of course, holding that states may permissibly impose a requirement says

nothing about whether states must impose it. One need look no further than the

Cruzan opinion itself for that truism. Referring to a previous decision upholding a

state’s favored treatment of family relationships in termination of care situations,

the Court explained, “such a holding may not be turned around into a constitutional

requirement that a state must recognize the primacy of those relationships in a

situation like this.” Id. at 286, 110 S. Ct. at 2855. In case we missed the point, the

Court reiterated it when discussing another decision: “Here again petitioners

would seek to turn a decision which allowed a State to rely on family

decisionmaking into a constitutional requirement that the State recognize such

decisionmaking. But constitutional law does not work that way.” Id. 

Second, even if constitutional law did work the way the plaintiffs want,

contrary to the explicit teaching of the Supreme Court in the Cruzan opinion itself,

they would still not have a substantial case on this claim. Plaintiffs would not,

because Florida has adopted the very requirement that they say the Constitution

mandates, a clear and convincing evidence standard, In re Guardianship of

Browning, 568 So. 2d 4, 15 (Fla. 1990), and it was applied by the state courts in

this case, In re Guardianship of Schiavo, 780 So. 2d 176, 179 (Fla. 2d DCA 2001). 

The plaintiffs argue that the state courts should have concluded that the clear and
12

convincing evidence standard was not met in this case, but a quarrel with the result

of a proceeding does not state a claim that due process was not afforded. Stated

differently, procedural due process does not guarantee a particular result. 

The claim in Count Nine, that the defendants’ actions violate the Eighth

Amendment’s prohibition against cruel and unusual punishment, is plainly without

merit. That constitutional provision applies only to punishments inflicted after

conviction for crimes, not to life support or medical treatment decisions. See

Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 262–63,

109 S. Ct. 2909, 2913 (1989) (“The eighth amendment is addressed to courts of the

United States exercising criminal jurisdiction . . . .” (quoting Ex parte Watkins, 32

U.S. (7 Pet.) 568, 573–74 (1833)); Ingraham v. Wright, 525 F.2d 909, 912–913

(5th Cir. 1976) (en banc), aff’d, 430 U.S. 651, 97 S. Ct. 1401 (1977) (“Not only the

connotation of the words ‘bail,’ and ‘fine,’ but the legislative history concerning

enactment of the bill of rights supports an argument that the Eighth Amendment

was intended to be applied only to punishment invoked as a sanction for criminal

conduct.” (footnote omitted)).

Count Ten claims that the Fourteenth Amendment Due Process Clause is

violated when any person is deprived of nutrition and hydration against her wishes. 

To support this proposition, plaintiffs again rely on Cruzan, the narrow holding of
13

which we have already discussed at length. To the extent they claim a right to

procedural due process—and the supplemental motion in support of this count that

they filed in the district court indicates that is their specific claim—it has been

afforded in abundance. As Florida’s Second District Court of Appeal observed,

“Not only has Mrs. Schiavo’s case been given due process, but few, if any, similar

cases have ever been afforded this heightened level of process.” In re

Guardianship of Schiavo, ___ So. 2d ___, 2005 WL 600377, at *3 (Fla. 2d DCA 

Mar. 16, 2005); id. at *5 n.1 (listing twenty-one different proceedings in the case).

To the extent plaintiffs claim a substantive due process right, there is no

authority to support their position. We are mindful that the Supreme Court has

described itself as having “always been reluctant to expand the concept of

substantive due process because guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended.” Collins v. City of Harker Heights,

Texas, 503 U.S. 115, 125, 112 S. Ct. 1061, 1069 (1992). As a result, “[t]he

doctrine of judicial self-restraint requires us to exercise the utmost care whenever

we are asked to break new ground in this field.” Id. The Court has specifically

held that the substantive due process component of the Due Process Clause does

not require a state to protect its citizens against injury by non-state actors.

DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S. 189, 195, 109 S.
 Making decisions and drafting and revising opinions to explain those decisions under the 3

time pressures that these type of emergency matters impose is a difficult process and one in which

error can occur. In the process of researching the new issues and writing this opinion, we discovered

that the final version of the majority opinion we issued in the prior appeal three nights ago

inadvertently failed to attribute two sentences that we used from a prior Florida state appellate court

opinion. Compare Schiavo I, 2005 WL648897, at *5, with In re Guardianship of Schiavo, 2005 WL

600377, at *4. We are thankful that we discovered that omission in time to properly acknowledge

the source of the words in this opinion. Our former opinion will be promptly corrected to add the

appropriate citation.

As we said three nights ago: A petition for rehearing or suggestion for rehearing en banc 4

is not, of course, required before a petition for certiorari may be filed in the United States Supreme

Court. If, however, a petition for rehearing or rehearing en banc is to be filed, it must be filed by

8:00 a.m. ET, March 26, 2005. See Fed.R.App.P. 35(c) & Fed.R.App.P. 40(a)(1). 

14

Ct. 998, 1003 (1989) (“[N]othing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against

invasion by private actors.”); accord Lovins v. Lee, 53 F.3d 1208, 1209 (11th Cir.

1995) (no general substantive due process right to be protected against criminals

even when they were wrongfully released). As we have already explained, the

defendants are not state actors for present purposes.3

The district court’s denial of the temporary restraining order is

AFFIRMED.4
15

WILSON, Circuit Judge, concurring:

I concur in the result for the reason that the plaintiffs have been unable to

come forward in their second amended complaint with any new claims palpably

alleging the denial of a right secured by the Constitution or laws of the United

States. 
Page 16

APPENDIX TO THE COURT’S OPINION

16

THERESA MARIE SCHINDLER SCHIAVO, Incapacitated ex rel., ROBERT

SCHINDLER and MARY SCHINDLER, her Parents and Next Friends, Plaintiffs,

vs. MICHAEL SCHIAVO, as Guardian of the Person of Theresa Marie Schindler

Schiavo, Incapacitated, JUDGE GEORGE W. GREER and THE HOSPICE OF

THE FLORIDA SUNCOAST, INC., Defendants.

Case No. 8:05-CV-530-T-27TBM

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF

FLORIDA, TAMPA DIVISION

2005 U.S. Dist. LEXIS 4609

March 25, 2005, Decided

COUNSEL: [*1] For Theresa Marie Schindler Schiavo,

incapacitated ex rel, Robert Schindler and Mary

Schindler, her parents and next friends, Plaintiff: David

G. Gibbs, III, Gibbs Law Firm, Seminole, FL; George R.

Tragos, Law Office of George E. Tragos, Clearwater,

FL; Robert A. Destro, Columbus School of Law,

Washington, DC.

For Michael Schiavo, as guardian of the person of

Theresa Marie Schindler Schiavo, incapacitated,

Defendant: George J. Felos, Felos & Felos, P.A.,

Dunedin, FL; Iris Bennett, Jenner & Block LLC,
Page 17

APPENDIX TO THE COURT’S OPINION

17

Washington, DC; Randall C. Marshall, American Civil

Liberties Union Foundation of Florida, Inc., Miami, FL;

Rebecca H. Steele, ACLU Foundation of Florida, Inc.,

West Central Florida Office, Tampa, FL; Robert M.

Portman, Jenner & Block LLC, Washington, DC;

Thomas J. Perrelli, Jenner & Block, Washington, DC.

For Judge George W. Greer, Defendant: Barry A. Cohen,

Cohen, Jayson & Foster, P.A., Tampa, FL.

For The Hospice of the Florida Suncoast, Inc.,

Defendant: Gail Golman Holtzman, Constangy, Brooks

& Smith, LLC, Tampa, FL; John W. Campbell,

Constangy, Brooks & Smith, LLC, Tampa, FL; Robin G.

Midulla, Robin Greiwe Midulla, P.A., Tampa, FL.

For Liberty Counsel, Inc., Amicus: [*2] Erik W.

Stanley, Liberty Counsel, Longwood, FL.

For United States, Interested Party: Paul I. Perez, U.S.

Attorney's Office, Middle District of Florida, Orlando,

FL; Warren A. Zimmerman, U.S. Attorney's Office,

Middle District of Florida, Tampa, FL.

For Morton Plant Hospital Association, Inc., Victor E.

Gambone, M.D., Morton Plant Mease Primary Care, Inc.,

Stanton P. Tripodis, M.D., Interested Parties: James

Addison Martin, Jr., Macfarlane Ferguson & McMullen,

Clearwater, FL; Jeffrey W. Gibson, MacFarlane

Ferguson & McMullen, Clearwater, FL.

For Gordon Wayne Watts, Interested Party: Gordon

Wayne Watts, Lakeland, FL.

For State of Florida, Department of Children and

Families, Interested Party: Jennifer Stacie Lima-Smith,

Florida Department of Children & Families, Tampa, FL.

JUDGES: JAMES D. WHITTEMORE, United States

District Judge.

OPINIONBY: JAMES D. WHITTEMORE

OPINION: 

ORDER

BEFORE THE COURT is Plaintiffs' (First

Amended) Motion for Temporary Restraining Order

(Dkt. 34) n1 and Memorandum in Support (Dkt. 39). n2

After notice to the parties, the Court conducted a hearing

on March 24, 2005. Upon careful consideration,

Plaintiffs' motion (Dkt. 34) is DENIED.

n1 As to Defendant Judge George W. Greer,
Page 18

APPENDIX TO THE COURT’S OPINION

18

Plaintiffs' counsel confirmed at oral argument that

Plaintiffs were not seeking injunctive relief as to

Judge Greer in his official capacity. [*3]

n2 Plaintiffs acknowledge that this Court's

decision on the Emergency Motion Temporary

Restraining Order which was affirmed by the

Eleventh Circuit, resolved all issues with respect

to Counts One through Five. Accordingly, the

only issue before the Court is the propriety of the

injunctive relief requested in Counts Six through

Ten.

Applicable Standards

A temporary restraining order protects against

irreparable harm and preserves the status quo until a

meaningful decision on the merits can be made. Canal

Auth. of State of Florida v. Callaway, 489 F.2d 567, 572

(5th Cir. 1974). This Court has previously determined

and reaffirms that Plaintiffs have established that an

irreparable harm will be suffered unless the injunction

issues, the threatened injury outweighs any damage the

proposed injunction could cause the opposing party and

that an injunction would not be adverse to the interests of

the public.

Once again the critical issue is whether Plaintiffs

have established a substantial likelihood of success on

the merits on any one of Counts Six through Ten. n3 A

substantial [*4] likelihood of success on the merits

requires a showing of only likely or probable, rather than

certain success. Home Oil Company, Inc. v. Sam's East,

Inc., 199 F. Supp. 2d 1236, 1249 (M.D. Ala. 2002)

(emphasis in original). Where, as here, the "balance of

the equities weighs heavily in favor of granting the

[injunction]" the Plaintiffs need only show a "substantial

case on the merits." Garcia-Mir v. Meese, 781 F.2d

1450, 1453 (11th Cir. 1986). On careful consideration of

each count, the Court concludes that Plaintiffs have not

shown a substantial case on the merits.

n3 The Act does not address the traditional

requirements for temporary injunctive relief.

Accordingly, these standards control whether

temporary injunctive relief is warranted,

notwithstanding Congress's intent that the federal

courts determine de novo the merits of Theresa

Schiavo's claimed constitutional deprivations.

Schiavo v. Schiavo, No. 05-11556 at 5 (11th Cir.

March 23, 2005).

Discussion [*5]
Page 19

APPENDIX TO THE COURT’S OPINION

19

Pursuant to Pub. L. No. 109-3 this court has

jurisdiction "to hear, determine and render judgment" on

the claims brought by Plaintiffs on behalf of Theresa

Schiavo "for the alleged violation of any right of Theresa

Marie Schiavo under the Constitution or laws of the

United States related to the withholding or withdrawal of

food, fluids or medical treatment necessary to sustain her

life." This Court is to determine de novo Plaintiffs'

asserted claims as set forth in Counts Six through Ten.

The court must determine whether Plaintiffs have

shown a substantial case on the merits of any claim for

purposes of temporary injunctive relief. Absent a

showing of a deprivation of a constitutional right or

violation of a federal law, the sine qua non of this Court's

jurisdiction under Pub. L. No. 109-3, Plaintiffs cannot

establish a substantial likelihood of success on the merits

or even a substantial case on the merits.

-Count SixThe Americans with Disabilities Act

In Count Six, Plaintiffs allege that the failure and

refusal of Defendant Michael Schiavo to furnish Theresa

Schiavo with necessary and appropriate therapy,

rehabilitation services and essential [*6] medical

services and his demand that she be deprived of food and

water violate her rights under the Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq.

(Dkt. 36, P83).

In pertinent part, the ADA provides that "no

qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities

of a public entity, or be subject to discrimination by any

such entity." 42 U.S.C. § 12132. To state a claim under

Title II of the ADA, a plaintiff must allege: (1) that she is

a "qualified individual with a disability;" (2) that she was

"excluded from participation in or . . . denied the benefits

of the services, programs, or activities of a public entity"

or otherwise "discriminated [against] by such entity;" (3)

"by reason of such disability." Shotz v. Cates, 256 F.3d

1077, 1079 (11th Cir. 2001). Assuming arguendo that

Theresa Schiavo is a "qualified individual with a

disability," Plaintiffs must show that Defendants Michael

Schiavo and Hospice are "public entities" that

discriminated against her "by reason [*7] of" her

disability.

Contrary to Plaintiffs' argument, Michael Schiavo, as

court appointed guardian for Theresa Schiavo, was not

acting under color of state law. See Harvey v. Harvey,

949 F.2d 1127, 1132-33 (11th Cir. 1992); Kirtley v.

Rainey, 326 F.3d 1088, 1092-96 (9th Cir. 2003).

Moreover, Michael Schiavo cannot be a "public entity"

under the ADA by virtue of the plain language of the

statutory definition, which defines "public entity" as "any
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APPENDIX TO THE COURT’S OPINION

20

State or local government" or "any department, agency,

special purpose district, or other instrumentality of a

State or States or local government." 42 U.S.C. § 12131.

Accordingly, Plaintiffs cannot show a substantial

likelihood of success on the merits against Michael

Schiavo under the ADA.

As to Defendant Hospice, Plaintiffs contend that it is

a "public entity" under the ADA because it accepts

federal funding. Plaintiffs offer no authority, however,

for their contention. Again, the term "public entity"

means ". . . any state or local government." Simply put,

Plaintiffs have not shown that the Hospice is a "public

entity" under the ADA, an essential element of a Title II

claim. [*8]

Plaintiffs contend in the alternative that Hospice is a

"public accommodation" under the ADA. However, the

definition "public accommodation" in the statute, 42

U.S.C. § 12181(7), does not include a facility such as

Hospice. Moreover, even if it is assumed arguendo that

Hospice falls within the definition of "public

accommodation," Plaintiffs cannot show a substantial

case on the merits against Hospice under the ADA

because they have not shown that any alleged

discrimination against Theresa Schiavo was by reason of

a disability. In order to prevail under Title III of the

ADA, a plaintiff generally has the burden of proving: (1)

that she is an individual with a disability; (2) that

defendant is a place of public accommodation; and (3)

that defendant denied her full and equal enjoyment of the

goods, services, facilities or privileges offered by

defendant (4) on the basis of her disability. Larsen v.

Carnival Corp., Inc., 242 F. Supp. 2d 1333, 1342 (S.D.

Fla. 2003).

Plaintiffs have not shown that Hospice's compliance

with the state judge's order to withhold nutrition and

hydration constituted discrimination "on the basis of a

disability. [*9] " For example, it is undisputed that

Hospice, when directed by the state court, cooperated in

not only the removal of Theresa Schiavo's feeding tube

but also its reinsertion. n4 Hospice's conduct therefore,

must necessarily have been motivated by the Court's

order, not any discriminatory animus toward Theresa

Schiavo. For all of these reasons, Plaintiffs cannot

establish a substantial likelihood of success on the merits

or even a substantial case on the merits.

n4 Plaintiffs reliance on the regulation at 28

C.F.R. § 35.130 is misplaced. That provision

merely "clarifies that neither the ADA nor the

regulation alters current Federal law ensuring the

rights of incompetent individuals with disabilities

to receive food, water, and medical treatment."

Dept. Of Justice, Section-by-Section Analysis, 56

FR 35694 (July 26, 1991).
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APPENDIX TO THE COURT’S OPINION

21

-Count SevenThe Rehabilitation Act of 1973

In Count Seven, Plaintiffs allege that Hospice of

Florida Sun Coast, Inc. violated Theresa Schiavo's right

to [*10] rehabilitation under the Rehabilitation Act of

1973, § 504, as amended, 29 U.S.C. § 794. (Dkt. 36, PP

85-87).

The Rehabilitation Act of 1973 provides that "no

otherwise qualified individual with a disability . . . shall,

solely by reason of his or her disability . . . be subjected

to discrimination under any program or activity receiving

Federal financial assistance . . . ." 29 U.S.C. § 794(a)

(emphasis added). The elements of a claim under the

Rehabilitation Act are: "(1) that [she] is a 'handicapped

individual' under the Act, (2) that [she] is 'otherwise

qualified' for the [benefit] sought, (3) that [she] was

[discriminated against] solely by reason of [her]

handicap, and (4) that the program or activity in question

receives federal financial assistance." Grzan v. Charter

Hosp. of Northwest Indiana, 104 F.3d 116, 119 (7th Cir.

1997). The first and fourth elements are met as Theresa

Schiavo is a handicapped individual and Hospice

receives federal funds.

The second element requires that Theresa Schiavo

be "otherwise qualified," which means that absent her

disability, she would qualify for [*11] the treatment she

is being denied. Id. at 120. The Rehabilitation Act is

intended to ensure that handicapped individuals are not

denied access to programs provided to non-handicapped

persons. Id. at 121. Because of this intended statutory

purpose, courts hold that "'the otherwise qualified criteria

. . . cannot be meaningfully applied to a medical

treatment decision.'" Id. (quoting United States v. Univ.

Hosp. of State Univ. of New York at Stony Brook, 729

F.2d 144, 156 (2d Cir. 1984)). Theresa Schiavo is not

"otherwise qualified" because she would not have any

need for a feeding tube to deliver nutrition and hydration

but for her medical condition.

Plaintiffs also cannot establish the third element.

Hospice is not withholding nutrition and hydration

"solely by reason of" Theresa Schiavo's medical

condition, but rather because it is complying with a court

order and the instructions of her guardian.

Finally, Plaintiffs' attempt to bring an action on

Theresa Schiavo's behalf under the Rehabilitation Act for

withholding nutrition and hydration fails as the

Rehabilitation Act does not mandate the provision of

services. See Olmstead v. L.C. ex rel. Zimring, 527 U.S.

581, 603 n. 14, 144 L. Ed. 2d 540 (1999) [*12] ("We do
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APPENDIX TO THE COURT’S OPINION

22

not in this opinion hold that the ADA imposes on the

States a standard of care for whatever medical services

they render, or that the ADA requires States to provide a

certain level of benefits to individuals with disabilities.").

Plaintiffs accordingly have not established a

substantial likelihood of success on the merits or a

substantial case on the merits under the Rehabilitation

Act of 1973.

-Count EightViolation of Fourteenth Amendment Due Process

Right to Substituted Judgment Decision Based on a

Clear and Convincing Evidence Standard

Count Eight alleges that Theresa Schiavo's

Fourteenth Amendment due process rights were violated

in that the state court's order of February 11, 2000,

authorizing the discontinuation of hydration and

nutrition, "was not supported by clear and convincing

evidence that Terri would have made the same decision."

(Dkt. 36, P 90). Plaintiffs contend that the state trial

judge made a number of evidentiary errors in concluding

that Theresa's intentions were established by clear and

convincing evidence. Plaintiffs' counsel acknowledged

during oral argument that Count Eight presents a

procedural due process claim under the [*13] Fourteenth

Amendment.

Plaintiffs contend, relying on Cruzan v. Missouri

Dep't of Health, 497 U.S. 261, 111 L. Ed. 2d 224 (1990),

that "the Due Process Clause of the Fourteenth

Amendment requires that decisions to remove hydration

and nutrition from an incapacitated person must be

supported by clear and convincing evidence that the

incapacitated person would have made the same

decision." (Dkt. 36, p 89) (emphasis added). Contrary to

Plaintiffs' contention, the Supreme Court in Cruzan did

not mandate application of the heightened clear and

convincing evidence standard. The question before the

Cruzan court was whether the state's application of the

heightened evidentiary standard overburdened the

patient's right to refuse medical treatment, not whether it

adequately protected the patient's right to life.

Given the holding in Cruzan, Plaintiffs cannot

complain of a deprivation of Theresa Schiavo's

Fourteenth Amendment procedural due process rights.

The state court judge applied the heightened clear and

convincing evidence standard in determining her

intentions, as permitted by Cruzan and in accordance

with Fla. Stat. § 765.401(3). n5 To [*14] the extent

Plaintiffs complain that the quantum of evidence did not

rise to the level of clear and convincing, these claimed

evidentiary errors are a matter of state law, not federal

constitutional law.

n5 Fla. Stat. § 765.401(3) provides, in
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APPENDIX TO THE COURT’S OPINION

23

pertinent part:

B e f o r e e x e r c ising t h e

incapacitated patient's rights to

select or decline healthcare, . . . a

proxy's decision to withhold or

w i t h d r aw l i f e - p rolongi n g

procedures must be supported by

clear and convincing evidence that

the decision would have been the

one the patient would have chosen

had the patient been competent.

-Count NineViolation of Eighth Amendment Prohibition

Against Cruel and Unusual Punishment

Count Nine of the Plaintiffs' Second Amended

Complaint alleges that Defendants violated the Eighth

Amendment's prohibition against cruel and unusual

punishment. Plaintiffs' assert that "Judge Greer and

Michael Schiavo, as state actors, have vioated [sic] Terri

Schiavo's Eighth Amendment rights by demonstrating a

[*15] deliberate indifference to a know [sic], substantial

risk of serious harm . . . ." (Dkt. 36, P 101).

The Eighth Amendment, as applied to the states

through the Fourteenth Amendment, prohibits the

infliction of cruel and unusual punishment. Hamm v.

Dekalb Cty., 774 F.2d 1567, 1571 (11th Cir. 1985). The

Eighth Amendment's prohibition against cruel and

unusual punishment only applies "subsequent to and as a

consequence of a person's lawful conviction of a crime."

Id. at 1572.

The Eighth Amendment is inapplicable to Theresa

Schiavo because the state has not "obtained a formal

adjudication of guilt." Id. at 1572 (quoting Ingraham v.

Wright, 430 U.S. 651, 671-72, n. 40, 51 L. Ed. 2d 711

(1977)). Despite Plaintiffs' contentions, Theresa Schiavo

is not being "detained" by the state at the Hospice.

Finally, as the court has previously noted, Michael

Schiavo and Judge Greer are not state actors. See Kirtley,

326 F.3d at 1092-96; Harvey, 949 F.2d at 133-34;

Torres v. First State Bank of Sierra Cty., 588 F.2d 1322,

1326-27 (10th Cir. 1978). For these reasons, Plaintiffs

cannot [*16] establish a substantial likelihood of success

on the merits or a substantial case on the merits on their

Eighth Amendment claim.

-Count TenViolation of Fourteenth Amendment Right to Life

In Count Ten, Plaintiffs allege that "depriving

Plaintiff of nutrition and hydration contrary to her wish

to live is a violation of her Fourteenth Amendment right
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APPENDIX TO THE COURT’S OPINION

24

to life." (Dkt. 36, P 104). As in Count Eight, Plaintiffs

rely on the Fourteenth Amendment to the United States

Constitution which provides that no state shall "deprive

any person of life, liberty or property, without due

process of law." During oral argument, Plaintiffs' counsel

confirmed that Plaintiffs assert a substantive due process

claim in Count Ten. The issue presented in Count Ten for

purposes of temporary injunctive relief, is whether,

consistent with the jurisdictional grant in Pub. L. No.

109-3, Plaintiffs have established a substantial likelihood

of success on the merits of their contention.

"A finding that a right merits substantive due

process protection means that the right is protected

against certain government actions regardless of the

fairness of the procedures used to implement them."

McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994)

[*17] (citing Collins v. City of Harker Heights, 503 U.S.

115, 117 L. Ed. 2d 261 (1992)) (internal quotations and

citations omitted); see also Zinermon v. Burch, 494 U.S.

113, 125, 108 L. Ed. 2d 100 (1990)("the Due Process

Clause contains a substantive component that bars certain

arbitrary, wrongful government actions 'regardless of the

fairness of the procedures used to implement them'").

As an initial matter, a substantive due process

violation requires state action. DeShaney v. Winnebago

Cty. DSS, 489 U.S. 189, 195 (1989)("nothing in the

language of the Due Process Clause itself requires the

state to protect the life, liberty, and property of its

citizens against invasion by private actors"). For the

same reasons that Plaintiffs could not establish state

action in their other claims, Plaintiffs have not

established state action in Count Ten.

Substantive due process rights are those rights

"created by the Constitution," of which "no amount of

process can justify [their] infringement." Vinyard v.

Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002). The plain

language of the Fourteenth Amendment contemplates

that a person [*18] can be deprived of life so long as

due process of law is provided. XIV Amend., U.S. Const.

("no State shall. . . deprive any person of life. . . without

due process of law"). The "right to life" is accordingly

protected by Fourteenth Amendment procedural due

process. Cf. Cruzan, 497 U.S. at 293 (J. Scalia,

concurring)("The text of the Due Process Clause does not

protect individuals against deprivations of liberty

simpliciter. It protects them against deprivations of

liberty 'without due process of law'"). All of Plaintiffs'

procedural due process claims have now been addressed

and rejected by this court.

Accordingly, Plaintiffs cannot establish a substantial

likelihood of success on the merits or a substantial case

on the merits on their Fourteenth Amendment substantive

due process claim.

All Writs Act, 28 U.S.C. § 1651
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APPENDIX TO THE COURT’S OPINION

25

The Eleventh Circuit stated that "our decisions make

clear that where the relief sought is in essence a

preliminary injunction, the All Writs Act is not available

because other, adequate remedies at law exist." Schiavo

v. Schiavo, No. CV-05-00530-T at 9 (11th Cir. March 23,

2005). Accordingly, the [*19] All Writs Act cannot be

used here to "evade the requirements for preliminary

injunctions." Id.

Plaintiffs (First Amended) Motion for Temporary

Restraining Order (Dkt. 34) is DENIED.

Finally, the court would be remiss if it did not once

again convey its appreciation for the difficulties and

heartbreak the parties have endured throughout this

lengthy process. The civility with which this delicate

matter has been presented by counsel is a credit to their

professionalism and dedication to their respective clients,

and Terri.

DONE AND ORDERED in chambers this 25th day

of March, 2005.

JAMES D. WHITTEMORE

United States District Judge